KISANLAL BACHHARAJ VYAS Vs. MOHAN CHANDMAL

JUDGEMENT

(1.) THE appellant who was the plaintiff in the Court below has a grievance against the order passed bv the Joint Civil Judge, Senior Division, Akola, on August 9, dismissing his suit as being barred by limitation.

(2.) THE suit in question was based on a pro-note dated September 11, 1957. The pro-note in question was said to have been executed bv the first defendant for himself and as manager of the joint family consisting of himself and defendant No. 2, in plaintiff's favour for a sum of Rs. 12,500/ -. The amount claimed in the suit on the strength of this pro-note from both the defendants was Rs. 14,750/ -. The period of limitation available for a suit to enforce the payment of pro-note being three years, the plaint in question was required to be filed in the Court on September 11, 1960. But since that happened to be a Sunday, the plaint was actually presented on the following day when the Court re-opened after the week-end i. e. , on September 12. 1960. It was not, however, presented during Court hours or on the court premises. What happened was that the plaintiff presented the same to the Clerk of the Court at his residence at 10. 15 p. m. The plaint was entertained by the Judge presiding the Court and further orders were passed in the suit. But when the defendants were served, they contended that the suit was barred by limitation, because, although it was presented on September 12, 1960, it was not presented to the Clerk of the Court during Court hours on the Court premises but at his residence after Court hours at about 10. 15 p. m. That presentation, it was contended, was clearly invalid and the plaint could not consequently be deemed to have been properly presented on September 12, 1960; and if it was not, it was clearly liable to be dismissed on the ground of limitation.

(3.) THIS contention of the defen-dants haying found favour with the learned trial Judge, the plaintiff's claim was dismissed as being barred by limitation on the short ground that the plaint initiating the proceedings was presented after Court hours at the residence of the clerk of the Court and the Clerk of the Court on his part had no power to receive the same. Since the plaint was being dismissed on a technical ground, the learned Judge thought it fit to leave the parties to bear their own costs. Thus defeated in the Court below, the plaintiff has come up to this Court in appeal.